HKSAR v. Lau Chak Lam, Andy

DCCC 1201/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1201 OF 2012

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Reasons for Verdict

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1.The defendant, Mr Lam, faces one charge of robbery. The robbery occurred at the Mr Kam Jewellery in Yim Po Fong Street at Mong Kok at about 1600 hours on 9 August 2012, when it is said a man entered the shop purporting to buy jewellery and looking at various pieces of jewellery. Some earrings were selected. Whilst examining them, the man threw pepper into the eyes of the shop assistant serving him, and then made good his escape out of the door of the shop with the earrings.

2.Later, at 1630 hours the same day, the defendant, together with a female, entered another branch of the Mr Kam Jewellery at Nullah Street in Mong Kok and tried to sell the same earrings that had been taken in the robbery earlier.  They were unsuccessful, but left with the earrings.

3.The defendant later attended the Mong Kok Police Station on 28 August.  On 5 September 2012, the defendant was identified as the person who stole the earrings by PW1, the shop assistant who served the robber.  The defendant takes issue with this identification.  He is prepared to admit, through counsel, the offence of handling stolen goods in relation to his admitted possession of the earrings in the Mr Kam Jewellery Shop at Nullah Street, Mong Kok.

4.A large part of the evidence at trial was dealt with by a set of agreed facts.  The only other evidence was the oral evidence of PW1.  The Admitted Facts are Exhibit P4.  The salient parts relating to the robbery were paragraphs 1, 2 and 3, and it was admitted on 9 August 2012 at about 1600 hours that a Chinese male walked into the branch of Mr Kam Jewellery situated at Ground Floor Shop A, 90 Yim Po Fong Street, Mong Kok in Hong Kong, that PW1 was asked to show to that person two pairs of earrings that were on display in the shop window.  The two pairs of earrings were placed on a glass counter inside the shop.

5.The male inquired about the price of the earrings, then threw pepper into PW1’s face, leading to the temporary blinding of PW1 due to the effect of the pepper.  The male then fled with one pair of earrings.

6.The retail price of the earrings was agreed at $39,988, their cost price being agreed at $15,999.

7.It was also agreed that the defendant and a female produced the earrings to another branch of Mr Kam Jewellery later that afternoon, the relevant paragraphs being paragraphs 4 and 5, the time being 1630 hours on the same day.  The defendant and a female entered another branch of Mr Kam Jewellery at 30 to 32 Nullah Street, Mong Kok.  The defendant took out the earrings that had been stolen earlier and showed them to the shop assistant.  The shop assistant took a photograph of the female.  She left.  The defendant took back the earrings and left the shop.

8.It was also agreed that CCTV recordings of the incidents in the shops, which are described as Shop A and B, were agreed, together with still images; also, that the shop at Nullah Street is some 400 metres from the shop where the robbery occurred.

9.The fact that the defendant was identified by PW1 on 5 September 2012 was also agreed.

10.As far as the live evidence is concerned, PW1 gave evidence.  In summary, his evidence was that he identified himself and the robber in the CCTV recordings which were played accompanying his evidence, and it can be seen that the Admitted Facts accurately reflected the course of the robbery.  PW1 said he had been temporarily blinded by the pepper being thrown into his face.  He said that he saw the face of the robber.  He had looked at him for quite some time, for about five minutes.  In respect of the identification at the identification parade, he was asked the following question:  “Are you sure about that, referring to your identification?”  The answer was:  “When I was at the ID parade, I quickly recognised he was the one.”  Question:  “What part did you recognise?”  Answer:  “His face.”  Question:  “Are you sure that the man that you identified was the robber?”  Answer:  “Yes.”

11.In cross-examination he agreed that when he first saw the man he was seven to eight feet away from him, and saw the side of his face as the man looked at jewellery on the counter on the far side of the shop.  He also agreed that the man wore a hat throughout, or a cap.  He said though that the hat did not block the view of the man’s face.  It was put that the cap blocked the view of the man’s eyes.  PW1 replied to this:  “From my angle, I could see his eyes clearly.”  He also said:  “I could see both eyes for a very short time when he came in.  I saw him face face to face.  Then he stood at the corner of the glass cabinet.  I saw him in profile.  Then he approached another counter, and I could see his eyes.”  The witness did not think that the cap obstructed the eyes completely, except when he, the robber, looked down into the cabinet.  PW1 agreed that the only time he saw the full face was when the man approached the work counter and asked for something.  He agreed that he had described the man as being only 5 foot 3 inches tall, and had not mentioned that he wore the cap. 

12.As far as the defence case was concerned, the defendant called no witnesses.  He elected not to give evidence himself.  Of course, no adverse inference can be drawn from that decision.

13.As far as the issues in this trial were concerned, the only issue in dispute between the parties is that of the identification of the defendant as being the robber.

14.A robbery occurs if a person steals, and immediately before, or at the time of doing so, he uses force upon any person or seeks to put any person in fear of being then and there subjected to force.  It cannot be disputed that a robbery occurred as charged.  The CCTV recordings, the Admitted Facts and PW1’s uncontested evidence provide clear evidence of the occurrence of a robbery on 9 August 2012 at the Mr Kam Jewellery Shop in Yim Po Fong Street, Mong Kok.

15.Where the prosecution case depends wholly or substantially on the correctness of an identification of a defendant and the defence alleges this to be mistaken, the judge should warn himself of the special need for caution before convicting.  The court must take into account that a mistaken witness can be convincing.  It is also necessary to closely examine the circumstances in which the identification took place, having regard to matters such as the length of the observation, the distance at which the observation was made, the lighting at the time, whether the view is obstructed, how long has elapsed between the original observation and subsequent identification, and whether there are any discrepancies between the description given by the witness and the actual appearance of the accused.

16.In this case, the defendant was admitted to be in possession of the items that had recently been stolen.  He was in possession of them some 30 minutes later and within 400 metres of the shop.  This can provide strong circumstantial evidence that the defendant was involved in the taking of the stolen goods.  Especially where there is a lack of explanation, the inference can more easily be drawn.

17.Naturally, the prosecution is required to prove its case beyond all reasonable doubt.  The burden to do so rests on the prosecution at all times.  The evidence must lead the court to the conclusion that it is satisfied so that it is sure of the defendant’s guilt.

18.The evidence capable of implicating the defendant in the commission of the robbery comes from three sources:  firstly, the identification of the defendant as being the robber by the first prosecution witness; secondly, the possession of the stolen items by the defendant a short time after the commission of the offence; and thirdly, the real time CCTV recordings of the events of the robbery and the attempt to dispose of the jewellery in the Nullah Street shop later.

PW1’s Identification Evidence

19.The prosecution place reliance upon the evidence of PW1.  They say it on its own is capable of proving their case.  The defence say that the reliance is misplaced, as PW1 could well be mistaken in his evidence.  They point to a number of factors for consideration.  They say that the witness did not have a sufficient opportunity to have a view of the man’s full face; that the man was originally seen in profile only; that when the witness, PW1, went over to provide assistance to the man and stood directly in front of him, that the man’s face was partly obscured by the fact that he was wearing a cap with a peak; that PW1 had misstated the height of the man as being only 5 foot 3 inches, and had not mentioned the existence of the cap - both of these are said to be significant features; that the actual identification on the identification parade was not until 5 September of 2012, when the robbery actually occurred on 9 August of that year.

20.Clearly there is always a danger that a witness may be honestly mistaken as to an identification.  It is necessary to see if there are any other circumstantial factors that strengthen the witness’ evidence so that reliance can be placed upon it to the necessary standard.

21.Looking at this identification evidence, there is a continuous period of some five minutes where PW1 is able to observe the man in the shop.  His view is in good light and unobstructed throughout.  There is opportunity during that time for the witness to see the man’s face in full and in profile.  Although a cap is worn, it does not obstruct the ability to see the relative dimensions of the features of the face upon which a recognition is based.  What is obscured is the hairline at the front and the crown of the head.

22.The CCTV recording of the incident also shows that for some time the man stands in profile to the location of PW1.  PW1 also said that he had a full‑face view of the man, and this is confirmed by the recording.  After he has stood in profile, the man approaches PW1.  After that, PW1 and the man interact over the counter near to the window.  PW1 is behind the counter and the man in front of it.  PW1 again has a clear view of the man from close up, except where the man’s head is tilted downwards to look at the jewellery.

23.From the evidence, one can see that PW1 had ample time, a clear observation, and sufficient lighting in which to make a reliable impression of the facial appearance of the man. This I believe is confirmed by the way in which PW1 describes his identification of the defendant at the identity parade just a month later.  PW1 said it was the second parade he had attended; that he saw the defendant in the line-up and recognised him immediately.  PW1 used the term “recognition” to describe his identification.  PW1 confirmed he was sure of this. 

24.I did note the discrepancy about the defendant’s height, PW1 describing him as being smaller than he actually was.  This appears to be explained by the fact that the man observed was leaning on the counter most of the time and appeared smaller than he actually was.

25.There is also the failure to mention the cap.  This is the kind of omission that is sometimes found in witnesses’ evidence.  I do not consider, given the relative strength of the evidence, that this impugns PW1’s testimony.

26.I found PW1 to be truthful and also reliable.  I am prepared to place full weight on his evidence of identification of the defendant as being the man in the shop who committed the robbery.  I would characterise his evidence as being very strong.  It is certainly sufficiently strong to prove the fact of the defendant being the robber beyond reasonable doubt on its own.

27.I do also note the evidence of the defendant in possession of the stolen goods 30 minutes later and 400 yards away from the robbery scene.  It is further compelling circumstantial evidence supporting the evidence of the defendant’s involvement as the robber.

28.I do consider that PW1’s evidence has already proved that fact beyond reasonable doubt.

29.I do not consider the CCTV recording or the screen captures from it provide a sufficiently clear image to provide useful evidence of identification.

30.By my findings of fact, it is clear that I find the defendant to be correctly identified by PW1 as the robber.  Thus, all elements of the charge preferred against the defendant are proved beyond reasonable doubt, and I convict him accordingly.